Avoiding Employment Tribunal Claims
Posted: Tuesday 20 July 2010
Employment Tribunal claims can be costly, damaging to employee relations, time consuming and attract negative publicity. Given that the cap for an unfair dismissal compensatory award is now £65,300, with discrimination claims having no cap, it is in all employers’ interests to take steps to minimise the risk of a claim. This article explores some simple steps to consider which can help avoid Tribunal claims.
It sounds simple, but the first point to consider is the contract of employment. It is important to keep this up to date with changes in, for example, holiday entitlement. It is also important to ensure that managers are familiar with employees’ contractual rights and obligations, as well as the details of any disciplinary and grievance procedures to ensure that any internal disputes that arise are dealt with appropriately. Consideration should be given to the ACAS Code of Practice on Disciplinary and Grievance Procedure when drafting any such policy.
The ACAS Code should also be borne in mind when taking any disciplinary action against an employee. In a disciplinary situation, the employee should be given a fair hearing: it will be virtually impossible to justify the dismissal of an employee who is dismissed on the spot. It is only competent to dismiss in a disciplinary context where there has been gross misconduct or a string of minor conduct issues which have been properly dealt with, with appropriate warnings having been given, at the time they occurred. Dismissal for a first offence, unless it is very serious, is likely to be unfair.
Where there are concerns about an individual’s performance these should be dealt at the earliest possible stage by going through a proper performance management process. In most circumstances employees cannot claim unfair dismissal if they have less than one year’s service and therefore if performance issues can be identified in the first year of employment then this minimises the risk of a successful claim. However, there are a number of exceptions to the one year rule, including all discrimination claims, so care does still require to be taken.
With regard to discrimination claims it is a potential defence to certain discrimination claims if an employer can show that reasonable steps have been taken to educate managers in equal opportunities and to prevent discrimination occurring. It is therefore important to ensure that managers receive such training and that this training is administered on a rolling basis in order to ensure that newly promoted members of staff are not missed out, and to provide a refresher. It is also essential to have an equal opportunities policy in place and to ensure that managers are aware of it. Any reports of discrimination should be taken seriously and thoroughly investigated by someone unconnected to the allegations. Employers should also be careful to ensure that a culture does not develop whereby certain types of discrimination are seen as acceptable, even if no complaint about that behaviour has been made by an employee.
When considering making changes within the workplace it is important to properly consult with the workforce. In some situations, for example redundancy, this is a legal necessity, however, even when making less significant changes, it will minimise feelings of disengagement from management if staff are given a say in changes that may affect them. This engenders a workforce who feel valued and therefore are less likely to feel unfairly treated and, in turn, be less likely to raise a Tribunal claim.
Of course, even the most careful employer can find itself on the receiving end of an Employment Tribunal claim. However there are a number of steps that can be taken to maximise the chances of defending such a claim. The most important thing for employers is to ensure that an adequate paper trail has been maintained. Many unfair dismissal claims come down to the credibility of the witnesses and the case will turn upon which party the Tribunal Panel believes. This can render the outcome of the Hearing uncertain, even when the employer has not been at fault. However if careful records have been kept of each step of the disciplinary, grievance or redundancy process then it puts the employer in a better position to defend any claim, at least on procedural grounds.
Our advice is to minute every formal meeting with employees and follow up the meeting with an email or letter to the employee confirming what was discussed. In the case of a disciplinary hearing, the employee should be sent a copy of the minutes and provided with an opportunity to comment on them. When a decision is being taken about an individual’s employment, such as whether to dismiss in a disciplinary scenario, then any reasoning should be recorded in a file note so that there is a record of this. Keeping records in this way will be likely to give the employer’s evidence more weight if the claim does reach a Tribunal.
It is also advisable to take a step back and do a sense check before taking any decision to dismiss an employee in order to ensure that the action being taken is fair and reasonable. It is also worth taking legal advice prior to taking the final decision to dismiss so that you are aware of the level of risk and financial exposure involved in dismissing any particular employee.
If you do receive a Tribunal claim from an employee you should take legal advice in relation to it. Please contact Innes Clark, the Head of Morton Fraser’s Employment Team, for advice on defending a Tribunal claim, or any other employment related matter. Innes can be contacted on innes.clark@morton-fraser.com or 0131 247 1181.
